LCCR Employment Task Force Letter to Senate on Mandatory Arbitration

Recipient: Senate

Dear Senator:

As members of the Leadership Conference on Civil Rights Employment Task Force, we write to urge your support for the Preservation of Civil Rights Protections Act of 2002. This important civil rights legislation would prevent employers from forcing workers to give up their right to go to court ? and accompanying legal protections ? when they have job discrimination claims.

In a troubling trend, an increasing number of employers require workers to agree ? as a condition of hiring or continued employment? to submit any and all future employment disputes to mandatory, binding arbitration. Such mandatory arbitration undermines fundamental principles established by the hard-fought civil rights battles of the last 30 years. It enables defendants to circumvent a key federal civil rights protection: the right of job discrimination victims to have their claims heard by a judge and jury, who have sworn to apply and uphold the law. Instead, a mandatory arbitration program allows employers to bypass some of the most important civil rights protections first established in the Civil Rights Act of 1964 and later expanded by the Civil Rights Act of 1991, such as access to jury trials and fuller remedies for discrimination victims.

In place of this public system of justice, mandatory arbitration offers a private system with little accountability and few controls. Courts have played a critical role in vindicating the civil rights of bias victims ? including, for example, developing the legal standards prohibiting sexual harassment and emphasizing employers’ responsibilities to maintain a workplace free of discrimination. In contrast, mandatory arbitration often allows employers to curtail dramatically the remedies and procedural protections, such as injunctive or remedial relief, available to discrimination victims. For example, some mandatory arbitration programs limit or deny compensatory and punitive damages ? thus denying workers the very remedies that the Civil Rights Act of 1991 gave to victims of harassment and other forms of discrimination. In addition, the Federal Rules of Evidence, which can be so important in protecting against intrusive inquiries into harassment victims’ private sexual histories, do not apply in arbitration proceedings. Moreover, arbitrators are not even required to have a background in basic employment law, including knowledge of legal protections against job discrimination. Despite these factors, which greatly limit a claimant’s chance of a fair outcome, arbitration contains no right of appeal; thus, an arbitrator’s decision is frequently the final one. Finally, many claimants cannot afford access to even this limited remedy, as individuals must pay their own arbitration fees, which can reach into the tens of thousands of dollars.

Although we believe that alternative dispute resolution, when fully voluntary and properly designed, can in many cases helpfully resolve employment disputes, mandatory arbitration forces workers to abandon their access to the courts and accompanying legal safeguards. The Preservation of Civil Rights Protections Act of 2002 would prevent such unfairness and preserve the protections of our civil rights laws. Please support and co-sponsor this important legislation.

Sincerely yours,

THE LEADERSHIP CONFERENCE ON CIVIL RIGHTS EMPLOYMENT TASK FORCE

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW

NATIONAL EMPLOYMENT LAWYERS ASSOCIATION

NATIONAL PARTNERSHIP FOR WOMEN & FAMILIES

NATIONAL WOMEN’S LAW CENTER

NOW LEGAL DEFENSE AND EDUCATION FUND

WOMEN EMPLOYED